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ANALYSIS OF APRIL 28, 2009 CAV OPINIONS

[Posted April 28, 2009] Today represents a push for the prosecution and the defense in the Court of Appeals of Virginia. The court decides three criminal appeals; the appellants win one outright and lose one outright, and one produces a partial reversal. There’s also a birth-related neurological injury decision among today’s batch of opinions.

Criminal law
In 2004, the US Supreme Court shook things up significantly with Crawford v. Washington, which practically ended the use of hearsay exceptions in criminal trials. Citing the Confrontation Clause, the Court did away with the notion that out-of-court testimony could nevertheless be sufficiently trustworthy to merit admission against a criminal defendant, in this memorable language: “Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty.” 541 US 36, 62 (2004).

Accordingly, ever since Crawford, the defendant is entitled to look the witnesses in the eyes as they testify against him. The question in today’s case of Harper v. Commonwealth is whether that requirement applies to sentencing proceedings. Years before Crawford, the Court of Appeals had held that the Confrontation Clause doesn’t apply to sentencing hearings. The sole question today is whether Crawford overruled that prior holding.

Citing a parallel US Supreme Court ruling, which had also held that the Confrontation Clause didn’t apply to sentencings, the court today concludes that its previous holding (Moses v. Commonwealth, 27 Va. App. 293 (1998) ) is still good law. The court surveys rulings from a wealth of other jurisdictions, almost all of which had concluded that the Clause doesn’t help a defendant at sentencing, and joins them. In doing so, it points to the broad discretion of a sentencing judge to consider a wide variety of information in fashioning an appropriate sentence.

The appellant in Lacey v. Commonwealth fares a bit better. A Virginia Beach homeowner was working outside his home one day when he went into the garage. At that point, he encountered Lacey, who walked through the door that led from the utility room into the garage. Now, there’s nothing inherently surprising about that, except for the little fact that the homeowner and Lacey weren’t acquainted at the time.

Something like the following conversation ensued:

Homeowner: What are you doing?
Lacey: [No answer. Probably thinking fast.]
Homeowner: I said, what are you doing?
Lacey: I had to use the restroom.
Homeowner: Uh-huh. [He eyes Lacey warily.] Just what, exactly, did you steal?
Lacey: Ummm . . .

At that point, Lacey did the honorable thing – he turned tail and ran like a scared bandit. The homeowner went inside and found that $152 had been taken from his wallet. He called the police.

As a former member of the Virginia Beach City Attorney’s Office, I might be biased, but I think our gendarmes down here are pretty efficient. This time, they got Lacey shortly after the theft, with – surprise! – $152 in his pockets. That got him indicted for burglary.

If you handle criminal work, either prosecution or defense, you know that daytime burglary requires proof that the defendant used some degree of force (even as slight as pushing open a door that’s already ajar) to get into a residence, with the intent to commit burglary. By all appearances, Lacey got into the house through the garage; the garage door was wide open; but the door leading into the interior of the house was closed. The issue in this case is whether Lacey used any force to get inside the house.

I didn’t know before reading this opinion that using force on an interior door isn’t burglary; you have to use some degree of force to get into the house. (Otherwise, I suppose every room a burglar enters by turning a door knob would be a separate burglary.) The question therefore becomes whether Lacey actually entered the house when he walked into the garage, or if he entered the house when he opened a door and went into the utility room.

The court rules today that since this was an attached garage, covered with the same roof as the rest of the building, Lacey didn’t use any force to get inside. Since the entry was accomplished without force, it doesn’t match the statutory definition of burglary.

There’s another issue in the case, but standing alone, it wouldn’t be enough to merit a published opinion. Lacey was also indicted for a third-offense larceny charge. He and the prosecution agreed to stipulate to the prior offenses, but not to tell the jury about them unless the jury found Lacey guilty. That worked just fine throughout the trial, until the verdict forms which mentioned the recidivist level of offense. Neither lawyer noticed the omission until the next day, but by that time the jury had already found Lacey guilty. His lawyer moved for a mistrial, but the trial judge refused, and today that Court of Appeals affirms that decision. Citing the requirement that a motion for a mistrial has to be made before the jury retires to deliberate, the court finds this issue to have been waived.

A third criminal appellant finds unqualified success today. In Thompson v. Commonwealth, the court reverses a ruling on a motion to suppress. The issue is whether a police officer had sufficient reason to conduct a patdown for officer safety, when the suspect did nothing more than appear somewhat nervous. To be fair, I need to add that he had been loitering in what’s described as an “open market for drug sales” for something on the order of a quarter hour. But the issue is whether the officer had any reason to suspect that Thompson was armed. He was, it turns out, but the officer didn’t get any real information about that (other than what the court today describes as a hunch) until he actually initiated the patdown. The court therefore rules that the motion to suppress should have been granted, and remands for further proceedings if the prosecution wants to pursue it – without incriminating evidence. (Trust me; this one’s over.)

Workers’ Compensation
Today’s opinion in Maryview Hospital v. Woodard isn’t really about Workers’ Comp law; it only fits in that category because the Birth-Related Neurological Injury Compensation Act gives the Comp Commission the authority to adjudicate claims arising under the Act. A baby girl was born in November 2002 with significant injuries. Her mother eventually sued in circuit court, but the hospital moved the court to refer the case to the Commission, claiming that the injuries were covered by the Act. The mother pointed to the allegations in her complaint that alleged willful, wanton, and reckless acts by the hospital (and other defendants), all of which, she argued, triggered an exception that permitted her to pursue the case before a jury.

The trial court transferred the case to the Commission to determine whether the claims fell within the confines of the Act. A deputy commissioner declined the mother’s request to send the entire case back to court, but he did so with respect to her claims of intentional or willful conduct. The full commission affirmed, and the hospital appealed.

This opinion, I am rather geekily happy to say, is about appellate jurisdiction. (Don’t tell me that geekily isn’t a word. “In a manner pertaining to, or typical of, geeks.” And procedure geeks deserve respect, too.) The question is whether the commission’s order, finding that a part of the case would be remanded, is a final, appealable order.

The analysis is fairly straightforward, and the court finds that the order isn’t final. Indeed, the commission still had work to do in the case, to determine whether the injuries were birth-related and caused by the hospital. When a tribunal rules that it still has something to do, that makes its ruling inherently interlocutory, not final.

The Court of Appeals is a court of limited jurisdiction. That’s true not only with regard to subject matter, but also with regard to the finality requirement. Appellate jurisdiction cannot spring from a non-final order (other than as expressly granted, such as with injunction appeals under Code § 8.01-626), and if the court doesn’t have jurisdiction, it doesn’t matter how compelling the arguments are; lack of jurisdiction is an appeal-ender. And the court so rules today, dismissing these appeals without prejudice. As a practical matter, that means the mother will probably get to press her claims of willful and reckless conduct to a jury – subject, of course, to appellate review at the real end of the case.